Readers of this blog will know my admiration for Chief Justice Chris Hinkson.  In a recent case: https://canlii.ca/t/jzhmq he applied his wisdom to the terrible question of when to cut off medical intervention for a patient in a persistent vegetative state.  The brief facts are:

·       65 year old Leo Bikus had a heart attack 18 May 2023, and had no pulse for 46 minutes [rough rule of thumb: you lose 10% of your brain for each minute without oxygen];

·       His brain flat-lined;

·       Brain scans showed his brain tissue progressively dying;

·       Hospital put him on life support;

·       His doctors told his daughters that he was “unlikely” to regain brain function;

·       His doctors recommended withdrawing life support;

·       His daughters sued the hospital;

·       They went to court four times, insisting that Leo’s twitching foot meant he was “on an upward trajectory”.

Leo had a history of severe coronary artery disease.  Two of his heart vessels were completely blocked. 

By the time Chief Justice Hinkson heard the case, Leo had been in a vegetative state for 75 days.  He had bed sores.  His lungs were filling with fluid. He did not react to pain, not even when his bare eyeball was protouched.

In his usual fashion, Chief Justice Hinkson considered all the relevant law, all the facts – including the medicine – and the best interests of Leo.  He was somewhat hampered because Leo had not made any advance direction in case of life-threatening medical condition.  Ultimately, Chief Justice Hinkson applied his “parens patriae” authority.  This literally means “father of his country”.  It’s what judges use when they are making decisions in the best interest of people who are unable to make their own decisions: children, mentally incompetent, or unconscious.  The Chief concluded:

“As I have stated above, the unanimous and uncontradicted views of Mr. Bikus’ treating physicians is that it is in his best interests for the life-sustaining treatment to be terminated, as such care would simply prolong his life and be futile, leading to a persistent vegetative state, with no conscious awareness, and would likely result in further harm including bed sores, infection, and other complications.”

He ordered that the hospital could continue to provide pain relief (no one could tell if Leo could feel pain), but could discontinue all life sustaining treatments.

This is a typical decision for the Chief: sensible, thoughtful, and consistent with the law.  I imagine it was difficult.

Leo could have saved his daughters a lot of anguish if he had prepared an advance direction, stating his wishes about what medical interventions he wanted.  Instead, he left it to them to agonize over whether the “pull the plug”.  Eventually, that decision had to be made by a stranger – a judge.

If you care about your family, prepare a formal advance directive.  Save them the pain Leo’s daughters had to endure.

At Clear Legal, we have been helping people deal with the inevitable since 1990.